Rodgers Ngulube v People (APPEAL NO. 162/2017) [2018] ZMCA 626 (29 March 2018)

IN THE COURT OF APPEAL FOR ZAMBIA HOLDEN AT NDOLA ( Criminal Jurisdiction) APPEAL NO. 162/2017 BETWEEN: RODGERS NGULUBE 2 9 MAR 2UU> -...,. L,r:a.,NT THE PEOPLE 'Rf -.i / ~ RESPONDENT Coram: Makungu, Chashi and Sichinga, J. J. A On 14th November, 2017, 28th February and 29th March, 2018. For the Appellant: Mr. D . B. Mupeta of D . B Mupeta and Co. For the Respondent: Mr. R. L. Masempela Deputy Chief State Advocate of NPA JUDGMENT MAKUNGU, JA delivered the Judgment of the Court. Cases referred to: 1. R v. Baskerville - ( 1916) 2KB, 568 2. Sentor Motors Ltd & three other Companies, SCZ Judgment No. 9 of 1996 3 . Masauso Zulu v. Avondale Housing Project Ltd (1982) ZR 172 4. Nyambe v. The People (1973) ZR 228 5. Phiri Macheka v. The People (1973) ZR 145 (C. A) 6. Muvuma Kambanja Situna v. The People (1982) ZR 115 7. Kateka v. The People (1977) ZR 35 8. Emmanuel Phiri v. The People (1982) ZR 77 (SC) 9. Mwelwa v. The People (1972) ZR 29 (HC) 10. Haonga & Others v. The People (1976) ZR 200 11. Charles Mwansa v. The People (2008) ZR 53 12. Nsofu v. The People (1973) ZR 287 -J2- 13. Davies Mwape v. The People (1979) ZR 54 14. Joseph Mulenga & Another v. The People (2008) ZR 1 Vol. 2 15. Benai Silungwe v. The People 15 (2008) ZR 123, Vol 1. Legislation referred to: 1. Penal Code, Chapter 87 of the Laws of Zambia- Section 138 (1) Other Authority referred to: 1. Archbold Criminal Pleading Evidence & Practice, Paragraph 20 - 73. This is an appeal against conviction and sentence. The appellant was convicted of defilement contrary to Section 138 (1) of the Penal Code 1 as read with Act No. 15 of 2005 of the Laws of Zambia. The background leading to this appeal is that, on 24th December 2014 around 19:00hrs, the prosecutrix (PWl) was playing outside her courtyard with her friends. The appellant whom she had known for some time took her by the hand and told her that he was taking her to see an unknown person whose eye she had gorged out. He took her to his house which was empty and had sexual intercourse with her in his bedroom. When she shouted for help, he slapped her on the face and hit her with a bottle on the head. There was enough light in the house at the material time. After the act, blood started oozing from her vagina and she was in immense pain. She wore her blue jeans skirt and orange top that had blood stains. She was blindfolded and the appellant walked her to a church near her home. Around 20:00 hours while PWl was away, the neighbour informed her mother (PW2) on the telephone that her child was missing. When PW2 returned from work around 22:00 hours she found PWl crying on the verandah -J3- with blood dripping from her clothes and her head was visibly injured. This portion of the evidence was confirmed by PW3 another neighbour to PW 1. PW 1 led PW3 and her step father to the appellant's house where he was found cleaning fresh blood from the beddings in his bed room whereupon PWl's father collected a blood stained bed sheet as evidence. The blood stained bed sheet, PW 1 's underwear and her blood stained clothes were all produced in evidence. The appellant was apprehended but he ran away as they were taking him to the police station. PW2 testified that she was unable to produce PW 1 's under five card because it was burnt in an inferno at her house in 2007 . She stated that PWl was born on 12th April, 2012 at Chinyunyu Clinic. That the medical report revealed that the victim suffered hymeneal lacerations at 4 and 8 o'clock which injuries were consistent with the report of defilement. It took two months before the appellant was apprehended by the police. In his defence, the appellant stated that on the material date, he arrived home with his wife from a shopping spree around 19:00 hours and went straight to bed as his wife proceeded to her mother's place. Subsequently, a mob entered his house and beat him up while accusing him of defilement. He was apprehended but in the process of taking him to the police he ran away. DW2 , Ruth Chiwayo was present at the time and her evidence was similar in all material respects with that of the appellant. The learned trial Magistrate, found that the prosecution had through the evidence of PW2 established that PW 1 was born on -J4- 12th April, 2002. He further stated that he had seen PWl and had no doubt in his mind that PW2's evidence on the age was reliable . Further that, the evidence of PWl regarding the defilement of her child was corroborated by the medical report. The Magistrate also considered Section 122 {b) of the Juveniles Amendment Act No. 3 of 2011 and the case of R v. Baskerville 1 and found that the prosecution evidence as to the identity of the defiler was corroborated by the material and circumstantial evidence. On this issue , he referred to the child's blood stained clothes exhibited by PW2 and connected it with the evidence of the blood stained bed sheet found on the appellant's bed shortly after the allegation of defilement. He drew an inference from the circumstantial evidence that the blood found on the bed sheet was from PW 1 's vagina during the sexual intercourse because the evidence of PWl - PWS to the effect that they observed fresh blood on the appellant's bed was unchallenged. He rejected the appellant's evidence as a mere fabrication and pointed out that the appellant's purported wife was not home that night. He therefore convicted the appellant as charged. Later the Appellant, was sentenced by the High Court to 35 years imprisonment with hard labour with effect from 9 th January, 2017 . The appellant has framed the grounds of appeal as follows: CONVICTION: 1. Though the Honourable trial Magistrate Court admirably and sufficiently warned itself of the burden of proof; the danger of convicting an accused on evidence below the mark of the standard of proof; and cited the correct -JS- authorities, the same is not reflected in the evaluation of the evidence before it. 2. There was no proof of the cardinal ingredient of the offence of defilement , namely age. 3. PWl did not give evidence of when, where and how she knew the accused. 4 . The Honourable Magistrate Court was biased and in favour of the prosecution because in his evaluation of evidence he never pointed out any discrepancy on the part of the prosecution, for example dereliction of duty by PW4 . SENTENCE: 1. The sentence of 35 years imprisonment with hard labour against the mandatory minimum of 15 years was too severe. At the hearing of the appeal , both counsel relied on their Heads of Argument filed herein. The five grounds of appeal were argued separately. However, it is clear that they are connected as can be seen from the arguments. In support of the first ground, counsel for the appellant Mr. Mupeta submitted that by law, the trial Court is required to adjudicate upon every aspect of the suit between the parties so that every dispute between the parties is finally resolved. To fortify this, he relied on the cases of Sentor Motors Ltd and three other Companies 2 and Masauso Zulu v. Avondale Housing Project Limited. 3 Following the above authorities, counsel argued that the trial court omitted to take in to account the state of light at the time of the -J6- ordeal. Mr. Mupeta submitted that the Court erred by not considering the evidence of PW3 reflected on page 8 of the Judgment to the effect that the defilement occurred in the dark around 22:00 hours and that there were no street lights in Ng'ombe compound. He stated that, the state of darkness PW3 was describing, was pitch black as there was no evidence of moonlight. In relation to the medical report which does not mention head injury, he stated that the trial Court was under the duty to comment on the head injuries allegedly suffered by PWl. In response to ground one, counsel for the state Mr. Masempela submitted that the trial Court addressed the issue of lighting at the scene. He emphasized that the lighting at the crime scene is crucial in determining the issue of identification rather than the lighting at the place where PWl was picked up. He referred to page 14 of the Judgment line 2 to 5 which states as follows: "The defense through cross-examination of PW3 attempted to show that there are no street lights in Ng'ombe Compound and that one would not know who picks them at around 19:00hrs. This contention was carefully not put to PWl or PW2." He further stated that the failure on the part of the appellant to cross-examine PWl on identification of the appellant at the point she was picked up is a clear indication that the appellant did not dispute the evidence to the effect that the prosecutrix knew him before the material date. PW3 was not in a position to address the -J7- question on the state of visibility at the scene because she was not there. Mr. Masempela referred to page 14 of the Judgment line 10 to 13 wherein the trial Judge found as follows: "As such PWl was in close contact with the accused. Further, there was light in the sitting room implying that PWl was not only able to hear his voice, but could see and identify the accused person ... PWl was not dealing with a stranger but a person she knew before." He also referred to the case of Nyambe v. The People 4 where it was held that: "There is great danger of honest mistake in identification, particularly where an accused was not previously known to a witness. The question is not one of credibility in the sense of truthfulness, but of reliability." In light of the Nyambe case, 14 1 he submitted that in the present case, the victim knew the appellant, the light was on and that she had ample time to observe him during the sexual intercourse. That the argument by Mr. Mupeta that the issue of the blood dripping on the prosecutrix skirt and head was not addressed by the trial Court does not go to the credibility of PW 1. He added that PW 1 's evidence was that she was hit by the appellant and her evidence was confirmed by PW3. In arguing ground two, Mr. Mupeta submitted that there was dereliction of duty on the part of PW4, the arresting officer who -J8- admitted in evidence that she did not do her job. That PW4 should have taken it upon herself to inquire on the child's age either through the biological father or calling some of the friends of the victim that she was with at the time she was apprehended by the defiler. He added that both PW 1 and PW2 testified that the victim was 13 years old. He went on to state that PW2 stated that her daughter was born on 12th April, 2012 but that she did not know when she started grade one as was shown on page 10 line 8 to 9 of the record. He contended that in light of the inconsistencies pertaining to PW 1 's age, the trial Court was biased. That the trial Magistrate was emotional as shown on page 10 of the record line 11 when he stated that he had personally seen the child and that she was below the age of sixteen years. That the court did not have regard to the victim's actual age and therefore the appellant was prejudiced. To buttress these arguments, he referred us to the case of Phiri Macheka v. The people 5 where the Court of Appeal held as follows: "i. Where the age of a person is an essential ingredient of a charge, that age must be strictly proved. ii. It is not acceptable simply for a prosecutrix to state her age; this can be no more than a statement as to her belief as to her age. Age should be proved by one of the parents or by whatever other best evidence is available." Mr. Mupeta stated that in the same vein, Archbold 111 at paragraph 20 - 7 3 says the following: " ...... the girl must be proved to have been under 13 years of age when the offence was committed. The best way of -J9- doing this is to produce a duly certified copy of the certificate of birth, coupled with evidence of identity but the age may be proved by any other legal means; R v Cox ( 1898) QB 179 (age could be proved by a person who has seen a child and by a teacher at an elementary school which the child attended)." He finally submitted that proof of the age of the child is an essential element in defilement cases and in this case it was not proved. Further that the danger of mistaken identity was not removed . In response to ground two, Mr. Masempela submitted that the age of the child was proved beyond reasonable doubt. He argued that the case of Phiri Macheka v. The People 5 cited by the appellant is good law. However, it is worth noting that PW2, the mother of the victim testified that her daughter was thirteen years old and the appellant did not dispute this part of the evidence. He added that the trial Court is at liberty to make observations of demeanour and appearance of a witness in arriving at its decision and that this should not be mistaken for bias or emotion. In support of ground three, Mr. Mupeta referred to PWl's testimony on page 5 line 3 to the effect that on 24th December, 2014, at about 19:00 hours she was playing when the appellant came and picked her and that she had known him prior to the incident. However, in cross-examination on page 28 lines 21 - 25 she stated that she did not know him. In the same vein, PW2 on page 9 lines 12 and 13 stated that she was able to identify the appellant as there was enough light. Under cross-examination, -J10- PW2 stated that she knew the appellant's place. In light of this evidence, it was argued that the only thing that was missing from the evidence of PW 1 and PW2 is the question of how, when and where they knew the appellant. He argued that the net result of this failure is doubt which must be dealt with in favour of the appellant. To support this, reliance was placed on the case of Muvuma Kambanja Situna v. The people 6 where the Supreme Court held as follows: "(i) The evidence of a single identifying witness must be tested and evaluated with the greatest care to exclude the dangers of an honest mistake; the witness should be subjected to searching questions and careful note taken of all the prevailing conditions and the basis upon which the witness claims to recognize the accused. (ii) If the opportunity for a positive and reliable identification is poor then it follows that the possibility of an honest mistake has not been ruled out unless there is some other connecting link between the accused and the offence which would render mistaken identification too much of a coincidence. (iii) Hearsay evidence which does not fall within the exceptions to the rule and which does not come within s.4 of the Evidence Act, Cap.170, is inadmissible as evidence of the truth of that which is alleged. (iv) The judgment of the trial court must show on its face that adequate consideration has been given to all relevant material that has been placed before it, -Jll- otherwise an acquittal may result where it is not merited." In responding to the third ground, counsel argued that the essence of cross-examination is to discredit a witness on contentious issues. That the failure on the part of the appellant to cross examine PWl on the issue of identification confirms that the appellant did not dispute the issue . He urged us to draw a number of inferences from the evidence presented and to consider that PWl knew the appellant before the ordeal. He went on to state that the case of Kateka v. The people 7 is distinguishable from this case because in this case, the danger of honest mistake was ruled out. He referred to the case of Emmanuel Phiri v. The People 8 where it was held: "In a sexual offence, there must be corroboration of both the commission of the offence and identity of the offender in order to eliminate the danger of a false complaint and implication. Failure by the court to warn itself is a misdirection." That the first piece of independent evidence is that the prosecutrix made an early complaint. In the High Court case of Mwelwa v. The People 9 it was held as follows: "Evidence of an early complaint in sexual offences only goes to the issue of consistency on the part of the prosecutrix." -Jl2- lt was counsel's submission that the prosecutrix reported the case to her parents immediately after the defilement while she was bleeding. She later took them to the appellant's house where they found the bed sheet stained with blood . That the early report made by the appellant was something more that excludes the danger of false implication. Further that, the conduct of the appellant when he escaped after his apprehension shows that he was guilty. In support of ground four, Mr. Mupeta submitted that the court was biased in that; firstly, the date of birth that was relied upon was not correct and the identification was not properly addressed leaving doubt in the prosecution's case. He went on to state that PW 1 was untruthful and did not clarify how she knew the appellant prior to the incident. Further that, the appellant was hit with a bottle but that the injury she allegedly sustained on the head was not covered by the medical report. It was also his contention that the fresh blood that was on the mattress was an exaggeration because if it soaked the mattress, it would have been so much, so that the victim would have bled to death. To support this position, Mr. Mupeta relied on the case of Haonga & Others v. The people 10 where it was held as follows: "Where a witness has been found to be untruthful on a material point the weight to be attached to the remainder of his evidence is reduced; although therefore it does not follow that a lie on a material point destroys the credibility of the witness on other points (if the evidence on the other points can stand alone) -J13- nevertheless there must be very good reason for accepting the evidence of such a witness on an issue identical to that on which he has been found to be untruthful in relation to another accused." In reaction to ground four, Mr. Masempela submitted that there was no bias against the appellant. Firstly, that there was a miscalculation on the part of the victim's mother as to the age of the child. This is because she stated that the child was 13 years and in grade six. The trial was in 2015. That a three-year-old cannot be in grade six and therefore the only reasonable conclusion that can be drawn from this is that the child was born in 2002. That there was nothing that prevented the Court from making ocular observations pertaining to the age of the child. Secondly, the trial Court did not shift the burden of proof to the appellant when it observed that the defense did not ask PWl and PW2 certain questions in cross examination. That the appellant has raised an issue of visibility which was not raised during trial. Mr. Masempela further argued that the mere fact that the Doctor did not indicate the head injuries on the medical report does not go to the root of the matter. It was counsel's conclusion that the evidence of PWl was not discredited under cross-examination, therefore it is reliable. On sentence, it was argued by Mr. Mupeta that the mandatory sentence was introduced due to public outcry and that a sentence of 35 years is excessive considering that the mitigation was in -J14- favour of the appellant. He referred to the case of Charles Mwansa v. The People 11 where the accused was convicted on two counts of defilement and was sentenced to 20 years and 15 years imprisonment with hard labour on each count. On appeal, Justice Mushabati held that for a first offender without aggravating circumstances, 20 years was on the higher side and the sentence was r educed to 18 years. Mr. Mupeta therefore contended that the sentence was excessive because there were no aggravating circumstances. As regards the sentence, the respondent argued that there are aggravating circumstances in this case because the defilement was forceful and accompanied by assault. It was counsel's prayer that the appeal against conviction and sentence be dismissed. We have considered the submissions and the whole record of appeal. We shall deal with grounds 1 - 4 together and the ground against sentence separately. The issue of identification has been adjudicated upon by our courts in a number of cases including Nyambe v. The People. 4 The adequacy of evidence of personal identification will depend on all the surrounding circumstances of the case. In this case, PWl was removed from the company of her friends around 19:00 hours. The fact that they were playing entails that they were able to see one another and she was able to see the defiler (pages 5 - 6 of the Record of Appeal). While at the house, the sitting room was lit with electric light and as such, PWl saw her defiler clearly. On page 14 of the Judgment, the trial Court rightly evaluated all the circumstances surrounding the identification of the appellant by PWl. -JlS- We agree with Mr. Masempela that PW3 was not rightfully placed to testify as to the lighting at the crime scene because she was not there at the material time. The evidence from PWl shows that the incident happened between 19:00 and 20:00 hours. PW3 was able to competently speak about the time when PWl returned home. On the issue of identification, without repeating our analysis above, it is clear from the record that PWl knew the appellant's house where she led PW3 and her step father soon after the ordeal. The fact that the appellant was found cleaning fresh blood from the beddings is sufficient corroboration of PWl's identification. The respondent's case is further strengthened by the fact that the appellant did not in his defence give an explanation as to why he was clearing up fresh blood from his bed. He merely denied owning the blood stained bedsheet that was produced in evidence. The view we take is that the learned Magistrate rightly drew an inference from the circumstantial evidence that the blood found on the accused's bed and the bed cover oozed from the child's vagina during and after the sexual intercourse. Since the identification evidence was corroborated, the argument raised by Mr. Mupeta that PWl did not explain how she knew the appellant is irrelevant. On the issue of the court having not taken into account the medical report in relation to the alleged head injury, we are of the view that although the medical report contains nothing about the head injury, the evidence of PWl was that she was hit on the head with a bottle. PW3 confirmed that she had an injury on the head as she saw blood dripping from her head onto her shirt. Therefore, PW3 -Jl6- corroborated PW l's evidence of an injury on the head. PW l's shirt was admitted in evidence. It is trite law that a court should consider expert evidence/ opinion such as medical reports in view of the remainder of the evidence. The court may accept or reject wholly or in part expert opinion. We must state that Mr. Mupeta is right to say that PW2 gave the date of birth of PWl as 12 th April, 2012 as can be seen on page 8 of the record. If she was born on the said date, she would have been only three years old at the time of the trial in 2015. However, PW2 also testified that the child was in grade six at Presbyterian Primary School in Ng'ombe Compound. We fail to see how a three year-old would be in grade six. PW2 's evidence that the child was in grade six was not challenged and as such, the fact was established. In his Judgment, the learned Magistrate did not explain how he arrived at 12 th April, 2002 as PW 1 's date of birth . We are therefore at a loss as to where the date was derived from. However, the court's ocular observation that the child was certainly below the age of sixteen years cannot be disregarded as the court of appeal is not in a position to see the prosecutrix and can only rely on the lower court's observation. The cases of Nsofu v. The People 12 and Davies Mwape v. The People 13 establish the principle that it is sufficient for a court to rely on ocular observation to determine the age of a child or a juvenile. We therefore cannot fault the Magistrate for finding that according to his ocular observation, the child was below the age of sixteen. The view we take is that whether PWl was born in 2012 or 2002 is inconsequential because she was still below the age of sixteen. -Jl7- Taking into account the authorities of Phiri Macheka v. The People 5 and Archbold Paragraph 20 - 23 cited by Mr. Mupeta, we are of the view that it is sufficient for the prosecution to call only one parent to testify as to the age of the child victim of defilement as was the case herein. As regards the issue of dereliction of duty by PW4 to investigate the age, we are of the view that there was no such dereliction because PW 4 made inquiries from PW2 the mother of PW 1 and she was told that there was no documentary evidence of the date of birth. This is clear from her evidence under re-examination on page 17 of the record. In addition, the evidence of PW2 that she was unable to produce the under-five clinic card because it was burnt was not challenged. We have scrutinized the Judgment and are of the considered view that the trial Court had a balanced view of the evidence before it. We are therefore not convinced that the trial Court was biased against the appellant. Mr. Mupeta has argued that on page 14 of the Judgment lines 2 - 6 the Magistrate erred by shifting the burden of proof from the prosecution to the appellant. The said lines referred to read as follows: "The defence through cross-examination of PW3 attempted to show that there are no street lights in Ng'ombe compound and that one would not know who -J18- picks them around 19:00 hours. This contention was carefully not put to PWl or PW2." It is clear from the above that the burden of proof was not shifted and that the Magistrate merely commented on the cross examination of PW 1 and PW2. We are fortified by the case of Joseph Mulenga & Another v. The People, 14 where the Supreme Court held inter alia that: "During trial, parties have the opportunity to challenge evidence by cross-examining witnesses, cross examination must be done on every material particular of the case. When prosecution witnesses are narrating actual occurrences, the accused persons must challenge those facts which are undisputed." For the foregoing reasons grounds 1 - 4 have failed. As regards ground 5 , for the offence of defilement, the law provides for a minimum sentence of fifteen years and a maximum of life imprisonment. In sentencing the appellant, the Judge took into account the mitigatory statement to the effect that the convict was remorseful and that he was a first offender. He also took cognizance of the fact that the prosecutrix was brutally injured during the commission of the crime. Our view is that the brutal injuries inflicted on the victim during the commission of the crime , amount to an aggravating circumstance warranting a sentence exceeding the mandatory minimum provided by law. Therefore, the Judge properly exercised his discretion and justified the sentence. I .. -J19- In the case of Benai Silungwe v. The People. 15 The Supreme Court held inter alia that: "Unless the case has some extraordinary features which aggravate the seriousness of the offence, a first offender ought to receive the minimum sentence." In the present case therefore , the sentence does not come to us with a sense of shock. The 5 th ground of appeal therefore also fails . For the foregoing reasons , both the conviction and sentence are upheld. C. K. MAKUNGU COURT OF APPEAL JUDGE J. HASHI COURT OF APPEAL JUDGE